Mary A. Duffy, Complainant,v.Pete Geren, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionApr 30, 2009
0520090326 (E.E.O.C. Apr. 30, 2009)

0520090326

04-30-2009

Mary A. Duffy, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.


Mary A. Duffy,

Complainant,

v.

Pete Geren,

Secretary,

Department of the Army,

Agency.

Request No. 0520090326

Appeal No. 0120070580

Hearing No. 370-2006-00033X

Agency No. ARSHAFTER04DEC08108

DENIAL

Complainant timely requested reconsideration of the decision in Mary

A. Duffy v. Department of the Army, EEOC Appeal No. 0120070580 (February

10, 2009). EEOC Regulations provide that the Commission may, in its

discretion, grant a request to reconsider any previous Commission decision

where the requesting party demonstrates that: (1) the appellate decision

involved a clearly erroneous interpretation of material fact or law; or

(2) the appellate decision will have a substantial impact on the policies,

practices, or operations of the agency. See 29 C.F.R. � 1614.405(b).

In the appellate decision, complainant, an Administrative Services

Specialist, alleged that she was discriminated against on the bases of

disability and age when she was not provided a reasonable accommodation,

which resulted in her involuntary retirement. Specifically, the record

reveals that in order to consolidate the support staff into a single

location, the agency decided to change the location of complainant's work

unit. Complainant objected to the move, claiming that the additional

driving distance of several miles would adversely affect her due to

her physical and mental conditions. Following a hearing, an EEOC

Administrative Judge (AJ) issued a decision finding no discrimination.

The agency fully implemented the AJ's decision. The Commission affirmed

the finding of no discrimination. The Commission found that both the

record and testimony supported the AJ's conclusions that complainant was

offered an effective accommodation, and that the agency had satisfied

its obligations under the Rehabilitation Act.

In her request for reconsideration, complainant contends that she was

never offered an effective accommodation. In fact, she maintains that

she was ordered to climb the stairs or lose her job. She also indicates

that she called "Van Pool" and was told that the agency was unable to

provide her with transportation until the first week of January 2005.

After reconsidering the previous decision and the entire record,

the Commission finds that the request fails to meet the criteria of

29 C.F.R. � 1614.405(b), and it is the decision of the Commission to

deny the request. Specifically, the Commission finds that complainant

failed to show that the appellate decision involved a clearly erroneous

interpretation of material fact or law, or that the appellate decision

will have a substantial impact on the policies, practices, or operations

of the agency. With regard to complainant's contentions on appeal, upon

review of the record, the Commission finds that while complainant did

not receive the accommodation of her choice, reasonable accommodation

options were provided to her. Accordingly, the decision in EEOC Appeal

No. 0120070580 remains the Commission's decision. There is no further

right of administrative appeal on the decision of the Commission on

this request.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. You have the

right to file a civil action in an appropriate United States District

Court within ninety (90) calendar days from the date that you receive

this decision. If you file a civil action, you must name as the defendant

in the complaint the person who is the official agency head or department

head, identifying that person by his or her full name and official title.

Failure to do so may result in the dismissal of your case in court.

"Agency" or "department" means the national organization, and not the

local office, facility or department in which you work.

RIGHT TO REQUEST COUNSEL (Z1008)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request from the Court that

the Court appoint an attorney to represent you and that the Court also

permit you to file the action without payment of fees, costs, or other

security. See Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29

U.S.C. �� 791, 794(c). The grant or denial of the request is within the

sole discretion of the Court. Filing a request for an attorney with the

Court does not extend your time in which to file a civil action.

Both the request and the civil action must be filed within the time

limits as stated in the paragraph above ("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

04/30/09

__________________

Date

3

0520090326

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013